Flag Burning


Burning the
American flag is a
form of protected
symbolic speech.
The Supreme Court
upheld that right in
a 5-4 decision in
Texas v. Johnson
(1989).
Learning Objectives
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Explain the basis of our Civil Liberties in the Bill
of Rights
Explore the concept of Freedom of Speech; its
implications and limitations
Explain the concept of separation of Church and
State and how it affects policy
Explore the debate over abortion in terms of a
right to privacy
Describe how the court has used the equal
protection clause of the 14th amendment to
overcome sex based discrimination
Key Terms
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Civil Liberty
Bill of Rights
Libel
Slander
Censorship
Separationists
Accommodationists
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Establishment Clause
Free Exercise
Right to Privacy
Equal Protection
Clause
Discrimination
American Civil Liberties
Civil Liberties-Rights that government cannot breach.
I. The Bill of Rights

1st No abridgment of speech or press;
No government abridgment of peaceful assembly;
No government abridgment of petitioning government for redress.
No government establishment of religion;
No government prohibition of free exercise of religion.

2nd The people have the right to bear arms.

3rd Owner's consent necessary to quarter troops in private homes
in peacetime; quartering during war must be lawful;
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4th Government cannot engage in unreasonable searches and
seizures; warrants to search and seize require probable cause.
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5th No compulsion to testify against oneself in criminal cases;
Serious crimes require a grand jury indictment;
No repeated prosecution for the same offense;
No loss of life, liberty or property without due process;
No taking of property for public use without just compensation.
6th Criminal defendants will have a speedy public trial by impartial
local jury;
Defendants will be informed of accusations;
Defendants may confront witnesses against them;
Defendants may use judicial process to obtain favorable witnesses;
Defendants may have legal assistance for their defense.
7th Civil lawsuits can be tried by juries if controversy exceeds $20;
In jury trials, fact-finding is a jury function.
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8th No excessive bail;
No excessive fines;
No cruel and unusual punishment.
9th No government trespass on unspecified fundamental rights.
10th The states or the people retain all powers not delegated to
the national government or denied to the states.
II. American belief in 18th Century—God gave us rights that cannot be
taken away
III. Yet, what you will see is that protection of civil liberties evolved
over time.
Freedom of Speech
In America, freedom of speech is considered the core liberty.
Amendment One
Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people peacefully to
assemble, and to petition the Government for a redress of
grievances.
I. Freedom of speech has a major impact on the way political systems
function. Nations that allow and protect free speech operate very
differently than those that do not. Freedom of speech has an
impact on:
A. Individual citizens
B. Political Discourse
C. Government Officials
Civil Liberties
II. Speech is complicated. It can take a number of forms:
A. Pure Speech
B. Speech plus conduct
C. Symbolic Speech
III.
Forms of speech change over time. Thus, our way of defining protected
speech must change over time.
To keep free speech viable, it must keep up with changing values,
changing community standards and changes in technology.
IV.
Protecting free speech is difficult—must tolerate speech that we
disagree with, even hate.
This requires tolerance, and maturity. It requires a belief in the basic
decency and common sense of people.
Requires a belief that everyone is better off with the widest range of
speech.
V. What the courts try to do is protect the broadest range of speech,
without allowing speech to excessively abuse anyone else.
This is very hard work. It involves very careful balancing of
individual rights.
VI. One complication is that Americans support free speech but are
often conflicted about its application.
Attitudes Toward Freedom of Speech—Surveys from the 1990s

30% said freedom of expression should not apply to network
television

28% said it should not apply to newspapers

26% said it should not apply to art, music, or film

50% think books with "dangerous ideas" should be banned from
libraries
Percentage Opposed to Allowing
Communists to Make a Speech
Americans Tend to Endorse
General Principles But Make Numerous
Exceptions to Them
People with Different Life Experiences
Hold Different Views About
Politics and Government
Examples of Group Differences
in Public Opinion
Higher Education is Associated with
Greater Tolerance of Diversity
VII. Given the public’s ambivalence, it is not surprising that freedom of
speech was often not well protected during much of American
history.
In the 19th Century citizens were often arrested for exercising their
right to free speech. Cartoonist were even arrested for
"disrespecting" the president or other members of the government.
During World War I, Congress passed a couple of acts that were
used to arrest and jail citizens opposed to America’s entry or role in
that war.
Espionage Act of 1917
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Prohibited interfering with military recruitment
Inciting insubordination in military forces
Mailing material advocating rebellion
Sedition Act of 1918
Prohibited disloyal, profane, scurrilous, or abusive language about
the form of government, Constitution, soldiers and sailors, flag or
uniform of the armed forces.
The federal government prosecuted almost 2,000 and convicted 900
persons under these acts. The states prosecuted and convicted
many others.
Individuals were prosecuted for saying that war was in violation of
the teachings of Jesus.
For arguing that World War I should not have been declared until a
referendum was held.
And for saying that the draft was unconstitutional.
VIII. In 1919 the Supreme Court adopted a new standard for
evaluating protected speech.
The Clear and Present Danger test.
The question in every case is whether the words are used in
circumstances and are of such a nature as to create a clear and
present danger that they will bring about substantive evils that
Congress has a right to prevent.
To Suppress/Convict under Clear and Present Danger Doctrine
A. The speech must represent a kind of action
B. Action must be Imminent.
C. The action must constitute a substantive evil that government can
prevent.
Clear and Present Danger Doctrine

The principle that people should have
complete freedom of speech unless their
language endangers the public or the
nation.
A Couple of Examples
I. The Terminiello Case 1949
"A function of free speech under our system of government is to invite
dispute. It may indeed best serve its highest purpose when it induces
a condition of unrest, creates dissatisfaction with conditions as they
are, or even stirs people to anger." Justice Douglas
II. Feiner v. New York 1951-famous case know as the Heckler’s veto
case.
"As to the existence of a dangerous situation on the street corner, it
seems far-fetched to suggest that the "facts" show any imminent
threat of riot or uncontrollable disorder….Moreover, assuming that the
"facts" did indicate a critical situation, I regret the implication of the
Court’s opinion that the police had no obligation to protect petitioner’s
constitutional right to talk. …(the police) must make all reasonable
efforts to protect a speaker.“ Justice Black
I.
During the Civil rights era (1950s through 1970s), the
police frequently arrested demonstrators who were
engaged in legal behavior because of objections from
bystanders. The court overruled almost all of these
cases.
II.
The courts have upheld restrictions on speech in
certain locations and at certain times. This is known as
the time, place and manner standard.
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Includes areas around jails, courthouses, military
installations, sometimes schools.
"The nature of a place, the pattern of its normal
activities, dictates the kinds of regulations of time,
place, and manner that are reasonable."
Summary--Freedom of Speech Standards
A. Clear and Present Danger (1919)…. Whether the words are
used in circumstances and are of such a nature as to create a
clear and present danger that they will bring about substantive
evils that Congress has a right to prevent.
B. Time, Place and Manner (1966/1972) The nature of the place,
the pattern of its normal activities, dictates the kinds of
regulations of time, place and manner that are reasonable.
C. Vagueness-must not allow so much discretion in application as
to allow discrimination (e.g. sacrilegious movies).
D. Overbreath-cannot be so broad that it sweeps within its prohibitions
protected speech as well as unprotected activities (loyalty oaths/all
marches).
E. Least Drastic Means—cannot violate free speech if a problem
could be otherwise handled.
F. Content Neutral—less likely to be struck down than those that
restrict speech because of its content (prohibiting handbills on
telephone polls).
A Balance
 In
their attempt to draw the line
separating permissible from
impermissible speech, judges have
had to balance freedom of
expression against competing
values like
 public
order
 national security
 the right to a fair trial
Symbolic Speech
"Actions of some type that are designed to communicate a thought“
A. Tinker v. Des Moines 1969—students wearing black armbands to
school to protest the war in Vietnam.
B. FTD case, 1971.
C. Flag case, 1989. The Supreme Court in Texas v. Johnson ruled
that burning the flag was symbolic speech protected by the First
amendment.
D. In 1966 the Supreme Court upheld the right of four civil rights
protestors who visited and refused to leave a local public library that
did not permit use by nonwhite citizens. Speech, said the Court, is
not limited to verbal speech.
Standards For Suppressing Symbolic Speech
1. If the conduct itself may be regulated
2. If the regulation is content neutral
3. If the regulation is narrowly drawn to further a substantial
government interest
4. If this interest is unrelated to the suppression of free speech
5. If ample alternative channels for communication of information
are left open
Subversive Speech
A.
Dennis v. United States, 1951. "Teaching and advocating the
necessity of the violent overthrow of the government created a
clear and present danger."
B.
Yates v. United states, 1957. Legal to try to convince others to
believe anything. Restraint can be imposed if there is an effort
to convince others to engage in violent actions designed to
overthrow the government.
C.
1969 the Court further clarified the standard. An Ohio statute
prohibited "Advocating the duty, necessity, or propriety of
crime, sabotage, violence, or unlawful methods of terrorism as
a means of accomplishing industrial or political reform." The
Court overturned the statute.
The Court said that "The Constitution guarantees of free speech
and free press do not permit a state to forbid or proscribe
advocacy of the use of force or law violation except where such
advocacy is directed to inciting or producing imminent lawless
action and is likely to incur or produce such action."
Prior Restraint
"The suppression of speech prior to its utterance or publication."
The Court has long held that prior restraint bears a particularly heavy burden.
A.
Pentagon papers case, 1971. A government employee turned documents
over to the New York Times and the Washington Post. These documents
revealed that Presidents Kennedy, Johnson and Nixon had often
misrepresented to Congress and the American people the government’s
role in the Vietnam war, and the situation within that country.
President Nixon sought injunctions against the publication of the papers
on the ground that their publication would violate national security.
The Court ruled that a free press was essential in a democracy and that
government claims of national security could not be used to suppress
embarrassing information.
The Court said that if the newspapers broke any laws in publishing the
materials, they could be prosecuted.
The papers were published and no attempts at prosecution were ever
taken by the government.
B. Should It Be Legal to Help People Obtain
the Information Required to Make a
Hydrogen Bomb?
The Court Ruled on this issue in 1979
November 1979, Progressive
Magazine Article.
Censorship –First Standard
Queen V. Hicklin 1868
….whether the tendency of the matter charged as obscenity is to
deprave and corrupt those whose minds are open to such immoral
influences, and into whose hands a publication of this sort may fall.
Deficiencies of the Hicklin Test
Did not take into account:
a. Changing community standards
b. Reputation, social purpose, or artistic/scientific value of a work.
c. Works could be judged by isolated parts.
d. Works could be judged by impact on most susceptible persons.
e. Works could be censored based on presumed thoughts
Roth 1957
The Supreme Court ruled that "obscenity" is not protected speech,
but that obscenity had to be determined by the following standard:
Whether to the average person, applying contemporary community
standards, the dominant theme of the materials taken as a whole
appeals to prurient interests.
Roth Corrections:
a. Materials had to be judged as a whole;
b. By its dominant theme.
c. Its effects on the average person.
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Still, Who is the average person?
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How are community standards determined?
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What are prurient interests? Defined by the court as materials that
"have a tendency to excite lustful thoughts."
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1964—Court said material had to shock, be without redeeming social
importance.
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Turned out to be a very liberal standard. Greatly increased the range
of protected sexually-oriented materials.
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In 1969 the Court ruled that a private individual could legally possess
obscene materials, as long as the materials were for personal use.
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In another case the court ruled that the right of private ownership did
not mean that the government could not ban obscene materials from
the mails and from importation.
The Court also ruled that Roth did not give people the right to possess
child pornography.
Miller Corrections 1973
A. Whether the average person, applying contemporary community
standards would find the work, taken as a whole, appeals to prurient
interest
B. Whether the work depicts or describes, in a patently offensive way,
sexual conduct specifically defined by the applicable state law, and
C. Whether the work, taken as a whole, lacks serious literary, artistic,
political, or scientific value.
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The Court said that all parts of the standard had to be applied, and that
community standards could be local rather than national.
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Had to be "hard-core sexual materials" defined by state or local law.
Had to describe or depict patently offensive "hard-core“ graphic
sexual conduct.
Could prohibit hard core pornography, but not unpopular ideas or
mainstream movies.
Jurors had to define community standards, and jurors had to be
used in each case.
Children are a protected class; cannot be depicted as engaging in
sexual conduct. Computer generated images of children engaged in
sex acts or sexual situations are illegal.
Test Cases:
A. Movie theater in Atlanta that showed pornographic movies.
Warning sign out front. Admission limited to adults.
B. Censorship of the movie "Carnal Knowledge." Court said that
since cameras did not focus on genitalia or concentrate on
ultimate sexual acts it was not pornographic.
Religion: Drafting the First
Amendment
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The framers asked,
“Should we establish
a religion or not?”
Thomas Jefferson
wrote that there
should be “a wall of
separation between
church and state.”
Separationists vs.
How highAccomodationists
should the wall
between church and state
be?
Separationists argue that
a high “wall” should
exist between the church
and state.
Accomodationists
contend that the state
should not be separate
from religion but rather
should accommodate it,
without showing
preference.
Religion—This is what the Constitution Says
“Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof."
A. First half is know as the Establishment clause.
What did it mean?
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Clearly meant that there would be not be a state religion like
the Church of England.
Beyond this, did the framers mean to establish a "wall of
separation" between church and state, or simply mean that
government could not show preference?
Under the establishment clause the Court ruled in 1962 that
public schools could not conduct prayers or other religious
ceremonies.
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In 1963 the Court ruled that bible reading constituted a religious
ceremony or exercise.
In 1968 the Court did uphold Sunday closing laws as long as they
were not based on religious reasons.
1968-The Court ruled that public schools could not prohibit the
teaching of evolution.
1971—The Court ruled that church property used exclusively for
religious purposes could be exempted from property taxes.
Prayer in School

In Lee v. Weisman
(1992), the Court
continued its
unwillingness to
allow prayer in
public schools by
finding the saying of
prayer at a middle
school graduation
unconstitutional.
“See You at the Pole”
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Student participation
in before - or after school events, such
as “see you at the
pole,” is permissible.
School officials,
acting in an official
capacity, may neither
discourage nor
encourage
participation in such
an event.
What About Government Attempts
to Aid Religious Schools?
Examples include services or
financial support to help religious
schools
In 1971 the Court adopted the
Lemon Test
a. First, the law in question must reflect a clearly secular legislative
purpose.
b. Second, the law must have a primary effect that neither advances
nor inhibits religion.
c. Third, the law must avoid excessive government entanglement with
religion.
Designed to prevent three main evils:
a. Sponsorship
b. Financial support.
c. Active involvement of the government in religious activity.
The Supreme Court has upheld:

State income tax deductions for tuition, textbooks, and transportation for
all parents with children attending both public and private schools.

Textbooks, standardized tests, lunches, transportation to and from school,
diagnostic services for speech and hearing problems.

Public school teachers may teach remedial courses to disadvantaged
children in parochial schools.

The Supreme Court vetoed:

Teacher’s salaries and equipment. Counseling of students, teacherprepared tests, repair of facilities, transportation to and from field trips.

Religious instructors cannot be paid by the state to teach secular classes,
even after school.

Voucher cases are currently before the Court.
What Does the Free Exercise
Clause Mean?

Is Each Citizen Free to Practice Religion in
any fashion he or she chooses?
B. Free Exercise

Court has long held that it is not absolute

People can believe anything they wish, but actions are limited.

People cannot be required to believe in God.
Courts over time have allowed states to prohibit:
1. religious practices that constitute fraud
2. the unlicensed practice of medicine;
3. behavior that is risky to church members (snake handling);
4. excessive noise.
Court has upheld:
1. vaccinations for school children;
2. tests for marriage licenses;
3. medical care for the aged and children.
4. sanitation standards for sacrifice of animals
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In making these decisions the Court normally uses the "Secular
Regulation Rule."
The Courts have given the states latitude on issues such as jury
duty, pictures on drivers’ licenses, "standard work week,"
compulsory school attendance.
Religious Freedom Restoration Act of 1995
Required the states to show a compelling state interest to justify
any measure restricting religious practices. In regulating a church or
religion the state had to use the least restrictive means.
The Clinton administration took great pride in the passage of this
act. In the first case tested under the law, the Supreme Court ruled
it unconstitutional.
The Supreme Court said that the courts, not Congress, were the
proper and final interpreters of the First Amendment.
Abortion Rights
In 1973 the abortion laws of most states were nullified by the
Supreme Court case of Roe vs. Wade.
The Court ruled that the right to privacy, implicit in the 14th
Amendment’s “due process” guarantee of personal liberty,
encompassed a woman’s decision whether or not to have a child.
(Roe)
During the first trimester (three-month period) of pregnancy, the
Court held that a woman, in consultation with her physician, could
decide whether to terminate a pregnancy.
During the second trimester, a woman could decide to terminate a
pregnancy, but the state could reasonably regulate abortion
procedures to protect the health of the mother.
During the last trimester, the state could, if it wished, prohibit all
abortions except those necessary to save the life of the mother.
Regulating Abortions
1. States cannot require a waiting period longer than 24 hours.
2. States cannot require that abortion be performed in
hospitals.
3. States cannot require the consent of the husband or father.
4. States may require consent of parents of minors or
permission of a judge.
5. Federal funds can only be used to fund abortions in cases of
rape, incest, and threats to the mother’s health.
6. Federal agencies can provide information on abortion
options.
7. States can require tests to determine the viability of a fetus
and restrict abortions in cases in which the fetus is viable.
8. In general, restrictions on abortion are legal if they do not
place an undue burden on women seeking abortions.
Freedom of Access to Clinic Entrances Act of 1994
This act provides federal criminal and civil penalties for anyone
convicted of using force, threatening to use force or physically
obstructing clinics, their patients or health-care workers.
No Speech Zones:
1994 case involving abortion protesters in Melbourne, Florida allowed
demonstrators to be barred from getting within 36 feet of an abortion
clinic.
March, 1996 The Court upheld a New York law that:
1) bars protesters from coming within 15 feet of abortion clinic
entrances and driveways, or from blocking or impeding patients
and vehicles entering or leaving clinics
2) permits sidewalk counselors to enter the buffer zones but if a
patient expresses a desire to be left alone, the counselor must
stop speaking and withdraw.

The Court said:
“There is no right to invade the personal space of
individuals going about a lawful business, to dog their
footsteps or chase them down a street, to scream or
gesticulate in their faces….”
Discrimination Based on Sex
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1971 - The Supreme Court ruled that state law could not assume
that the rights of men were superior to those of women (Reed vs
Reed). State laws that made this assumption were in violation of the
equal protection clause of the 14th Amendment. This was the first
time the Court had upheld a claim of gender discrimination.
1971 - The Supreme Court ruled that a company could not refuse to
hire women just because they had preschool children, unless it also
refused to hire men with preschool children.
1974 - The Supreme Court ruled that men and women doing the
same job had to be paid the same wage.
1974 - The Supreme Court ruled that women could not be forced to
terminate their employment at an excessively early period simply
because they were pregnant. In this case a school district required
pregnant women to terminate employment five months before birth.
1975 - The Court ruled that a Louisiana law exempting all women
from jury duty was an unnecessary distinction between the sexes
and a burden on the constitutional guarantee that juries be drawn
from a cross-section of the community.
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1975 - The Court ruled a Utah law establishing the age of eighteen
as adulthood for women and twenty-one for men was
unconstitutional. The rational of the state law was that men needed
parental support longer than women because “men needed an
education and women did not.”
1977 - The Supreme Court struck down arbitrary height and weight
requirements for employees.
1978 - Congress amended the 1964 Civil Rights Act to require
employer-provided health insurance to treat pregnancy-related
illnesses like any other illness.
1980 - The Supreme Court upheld the all-male draft, along with
state laws under which only males could be convicted of statutory
rape.
1981 - The Supreme Court ruled that under the 1964 Civil Rights Act
women had to receive “equal pay for equal work.” All that is
necessary the Court said is “for a woman to show that gender was
used against her in determination of pay.”

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1988 - The Supreme Court upheld a New York law requiring the admission
of women to large, private clubs that play an important role in professional
life.
1996 -The Court ruled that states cannot categorically exclude women from
state-funded colleges.
Men directly benefited from a few rulings:

1972 - The Court ruled that a state could not presume that an unwed father
was an unfit parent.

1972 - The Supreme Court ruled that widowers and widowers had to be
treated equally under the Social Security Act.

1979 - Overruled a state law that provided alimony payments to women
only.

1982 - the Supreme Court ruled that nursing schools could not exclude
males.
Employment Status of Women by Marital Status and Presence and Age of Children
2002
75.3
Single/No
Children
71
81.7
69.6
60.8
Single/Children Single/Children 6- Married/No
under 6 Single 17
Children
76.8
Married/Childre Married/Children
n under 6
6-17
73.5
69.2
80.8
70.4
61.9
77.5
2000
73.9
70.5
79.7
70.6
62.8
77.2
1999
73.4
68.1
82.6
70.1
61.8
77.1
Year
2001
1995
57.5
53
67
70.2
1990
55.2
48.7
69.7
1985
51.6
46.5
64.1
60.8
1980
52
44.1
67.6
54.1
63.5
66.3
76.2
58.9
73.6
53.4
45.1
67.8
61.7
Public Opinion on Gay Rights Has
Changed as Gay and Lesbian
Political Activism Has Increased
Summary



Our basic civil liberties come from the Bill of Rights,
many from the first amendment
Freedom of speech is a very important, yet very
complicated right. It requires judges to balance freedom
of expression with other compelling values and interests
like public order, national security, and the right to a fair
trial.
Some forms of speech can be prohibited if it is presents
a clear and present danger, or if it contains “hard core”
pornography.
Discussion Questions

Why is the freedom of speech such an
important right for a democracy? Given
how essential it is for the continuation for
democracy, where is the line between free
speech and national security?
Discussion Questions


There are two main camps in the debate
concerning the role of government and religion
the separationists and the accommodationists.
Which one was originally intended by the
Founders and which was does current policy and
precedent represent?
Despite all the rulings where the Supreme Court
struck down laws that distinguished between
men and women why do you think they upheld
the all-male draft? Should women be drafted
along with men?
Libel and Slander
 Libel
is a written statement that
defames the character of a
person.
 Slander is spoken words that
defame the character of a
person.
 In the United States, it is often
difficult to prove libel or slander,
particularly if “public persons” or